Facts of the case

Question

Media for United States v. Edge Broadcasting Company

Audio Transcription for Oral Argument - April 21, 1993 in United States v. Edge Broadcasting Company

William H. Rehnquist:

We'll hear argument next in No. 92-486, United States and Federal Communications Commission v. the Edge Broadcasting Company.

Spectators are reminded not to talk until you get out of the courtroom.

The Court remains in session.

Mr. Larkin.

Paul J. Larkin, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

This case involves a First Amendment challenge by a radio station to Congress' regulatory program for broadcast lottery advertising.

Sections 1304 and 1307 of title 18 create a simple bright line geographically based rule under which a station's right to broadcast lottery advertising hinges on the state to which that radio station is licensed.

A radio station licensed to a state like Virginia that runs a state lottery can broadcast lottery advertising about that state's lottery or any other state lottery.

By contrast, a radio station licensed to a state like North Carolina without a state lottery cannot broadcast lottery advertising about any state lottery.

It is the validity of that bright line rule that is at issue as applied to respondent in this case.

The district court in a divided panel of the Fourth Circuit held this regulatory program unconstitutional under the commercial speech standard this Court adopted in the Central Hudson case.

Those courts reasoned that Congress had legitimate and substantial interests involved in helping the states pursue their policies towards gambling.

Those courts also concluded that this regulatory program was narrowly tailored to achieve that end.

Nonetheless, those courts held these statutes unconstitutional as applied to respondent on the ground that in that circumstance it did not directly advance Congress' goals.

Sandra Day O'Connor:

Mr. Larkin, under a First Amendment analysis in commercial speech cases when we apply Central Hudson do we look case-by-case at an as-applied challenge or do we simply look to whether the Central Hudson test is met and it's a reasonable response to the overall problem?

Is there such a thing as an as-applied case-by-case look in the analysis?

Paul J. Larkin, Jr.:

Your Honor, the as-applied type of challenge that I think the court contemplated under the commercial speech basis is a challenge that would go to show that a particular broadcast in this case should not properly be treated as commercial speech.

That type of as-applied challenge can always be brought.

We don't believe that these statutes should be construed to apply to editorials and news stories.

In fact the decree entered by the district court in this case so construed the statutes.

We did not challenge that aspect of the decree in the court of appeals.

Sandra Day O'Connor:

But as applied here insofar as it addresses the problem of a commercial advertisement, do we look at some case-by-case approach and say well, look, in this case it's so close to the border it's ridiculous as applied to Edge?

Paul J. Larkin, Jr.:

No, Your Honor, you don't.

Both precedent from this Court and reason indicate to the contrary.

First the precedent.

In the case of--

Sandra Day O'Connor:

I'm not sure the precedent is all that clear, so I'm interested to hear your response.

Paul J. Larkin, Jr.:

--In the case of Ward v. Rock Against Racism this Court addressed a similar argument.

In that case people were using the band shell in New York City Central Park.

The city had a regulation that was treated as a time, place, and manner regulation of the speech.